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Justice Stevens is one of the most progressive Justices on the Supreme Court.
And He has announced that he will retire during President's Obama presidency.

more below the fold:

AP story

55 mins ago

WASHINGTON – Supreme Court Justice John Paul Stevens says he "will surely" retire while President Barack Obama is still in office, giving the president the opportunity to maintain the high court's ideological balance.

Stevens said in newspaper interviews on the Web Saturday that he will decide soon on the timing of his retirement, whether it will be this year or next. Stevens, the leader of the court's liberals, turns 90 this month and is the oldest justice.

His departure would give Obama his second nomination to the court, enabling him to ensure there would continue to be at least four liberal-leaning justices. The high court is often split 5 to 4 on major cases, with the vote of moderate Justice Anthony Kennedy often deciding which side prevails.

"I will surely do it while he's still president," Stevens told The Washington Post.

I will scour the web and see which judges may be nominated by President Obama.

In order to retain the current balance on the Supreme Court, President Obama will need to pick a progressive like Elena Kagan, a long time favorite of mine. To fail to do so would move the court in a more conservative direction.

Elena Kagan: Solicitor General, U.S. Justice Department

Elena Kagan

BIO: Age: 49. Graduate of Harvard Law School. Law clerk for former Supreme Court Justice Thurgood Marshall. Former dean of Harvard Law School. Nominated by President Clinton for the D.C. Circuit, but her nomination was stalled in the Senate. Wrote a 1995 book review on Senate confirmation fights. "When the Senate ceases to engage nominees in meaningful discussion of legal issues," she wrote, "the confirmation process takes on an air of vacuity and farce." Kagan wrote that the trick is "alternating platitudinous statement and judicious silence."

-- It's a plus that lawmakers gained familiarity with her during her recent confirmation hearings.
-- She was seen at Harvard as someone who created unity among those with ideological disputes and recruited some of the best legal minds to the university.
-- She is an intellectual heavyweight.

-- She has no real experience in the court room, having served mainly in academic and policy-making positions.
-- She has argued that it violates the First Amendment to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court rejected her view.
-- She's a fierce critic of the military's "Don't ask, don't tell" policy.
--She passed up the chance to argue this year's voting rights case, and she's yet to argue a case against in front of the Supreme Court.

Diane Wood would be another likely candidate for the short list.

Diane Wood, Judge, U. S. Court of Appeals for the Seventh Circuit

Supreme Court Nominees

BIO: Age: 58. Grew up in New Jersey and moved to Texas in high school when her father, an accountant, was transferred. Graduate of University of Texas and University of Texas Law School. Clerked for Justice Harry Blackmun. Appointed to the 7th Circuit by President Clinton in 1995. Has also worked in private practice and was a long-time professor at the University of Chicago Law School. Also held government positions at the State Department and the Justice Department.

-- She has life experience and a sterling resume, including service as a federal appeals court judge, work in private practice, time spent as a professor and positions in the U.S. government.
-- She taught antitrust law and was associate dean at University of Chicago Law School, where Obama also taught.
-- On the appeals court, she has proven to be a strong opponent to appeals court judicial luminaries Easterbrook and Posner.

-- In NOW v. Scheidler, she wrote an opinion applying RICO -- a statute designed for mob prosecutions -- to prevent pro life activists from engaging in protests.
-- Detractors claim hostility to religious litigants and religious interests. She authored an opinion refusing to allow prisons to require inmate participation in drug rehab programs that used "explicit religious content."
-- --Conservatives will question her joining an opinion called Doe V. City of Lafayette, written by Judge Ann Williams. According to Emily Bazelon of SLATE: "It's about a convicted sex offender who cruised a park in Lafayette, Indiania, admitting to "having urges" about a group of kids he saw there, although he didn't actually molest them." Bazelon writes that the ruling, "defends the rights of what may be the most despised minority of all: pedophiles."

Pam Karlan is a strong progressive and extremely smart !

Karlan is openly gay
Throughout her career, Karlan has been an advocate before the U.S. Supreme Court.[4]

After a near-perfect score on the SAT in 11th grade, Karlan skipped 12th grade and enrolled at Yale University, where she earned a bachelor's degree in 1980 and a law degree and master of arts in 1984.[1]  At Yale Law School, she served as an Article & Book Reviews editor of the Yale Law Journal.[2]

In 1984-5, Karlan worked as a law clerk for former U.S. District Judge Abraham David Sofaer. In 1985-6, she clerked for U.S. Supreme Court Justice Harry Blackmun.

The least progressive choice appears to be Judge Merrick Garland.

He is relatively young, from Chicago and has served on the D.C. Circuit Court.

I may delete this since it may be so similar to Calchala's diary. I did a search before writing this diary.

btw, I suspect that every progressive diary I write further endangers my marriage.

What President Obama said about the appointment of Supreme Court Justices:

In November 2007, Obama was asked about the kind of justices he would appoint to the Supreme Court. He responded:


I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.

   . . . [S]ometimes we're only looking at academics or people who've been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.[10]

I have been reflecting upon when the best time would be for Stevens to retire, now or after the midterms. Let's suppose, as I do believe will be the case, that we will lose no more than 6 Senate seats in the midterm elections. We have 59 Senators who caucus with the Democratic Party. Afterward, we will have 53 Senators who caucus with the Democratic Party. The question is will it make a big difference in being able to get to 60 votes. Some no votes from "Democratic" Senators are inevitable prior to the midterms. For example, Ben Nelson, Mary Landrieu, Blanche Lincoln.. There are a couple of Republican Senate votes that we probably would get: Susan Collins and Olympia Snowe as they are both pro choice. But we would still need to get the votes of conservative Republican Senators. There is as good a chance of getting 7 of those votes as there is of getting 1 of those votes as they vote monolithically, in unison.

Prior to the midterms, it might be more difficult, for even decent (not great, but decent) moderate Democratic Senators like Claire McCaskill [McCaskill isn't up for reelection - Carnahan vs Blunt - this is just an example] to support a real progressive in a partisan, polarizing fight. Therefore, I conclude that it would be better for Stevens to wait until after the midterms to retire.

Thank you for recommending this diary. I have really enjoyed this discussion, am learning a lot from you guys (as per usual), and this really encouraged me and trust me, I needed the encouragement ! Thank you very, very  much !

NY Times had this to say (in anticipation) :

Wary of appearing presumptuous, the White House has avoided overt moves to prepare, but it already has long dossiers on a host of candidates after last year’s nomination of Sonia Sotomayor. If Justice Stevens retires, Democrats close to the White House said, the leading contenders will be three runners-up from last year: Elena Kagan, the solicitor general; Diane P. Wood, an appeals court judge in Chicago; and Merrick B. Garland, an appeals court judge in Washington.

The choice would depend in part on what kind of fight Mr. Obama is willing to wage amid other tough legislative battles.

Another article discussing replacing Stevens

A confirmation battle to replace Stevens -- considered the leader of the Court's liberal wing -- "could not only provoke fresh skirmishing" on abortion rights and other perennially contentious issues, it also likely would fuel debate over Republican claims related to the constitutionality of health reform, according to the Times.

Stevens, who will turn 90 next month, told the New Yorker in early March that he would make a retirement decision within the next month.

Of the three, Wood is the "front-runner with the most support among liberals," in part because of her opposition to some abortion restrictions and her reputation for taking a firm stand against conservative judges on the Seventh Circuit, according to the Times. Kagan, dean of Harvard Law School, has no judicial record, though she has both hired conservative professors and taken liberal stances during her tenure at Harvard. Garland "might be the safest choice" of the three because he is well-regarded by Democrats and some top Republicans, but "his careful jurisprudence stirs less enthusiasm among liberal activists" than other contenders, the Times reports.

A great article on this replacement by the Seattle Times .

When the chief justice votes with the majority, he decides who writes the court's opinion. But if the chief justice does not have a majority, the senior justice in the majority decides on the opinion writing, which can influence the outcome.

"The big impact will be the loss of Justice Stevens' leadership position, which flowed from both his position as senior associate justice and his unique combination of personality and persuasiveness," said Paul Clement, formerly the solicitor general in the Bush administration. "Even if the president can find someone with similar strengths in building coalitions — and that is a mighty tall order — the president cannot make the nominee the senior associate justice."

His departure has a "potentially huge impact, because Stevens has used that opinion-assignment authority with striking effectiveness," said Richard Lazarus, a Georgetown University law professor.

"But after Stevens, Justice Kennedy will be the senior justice in almost any liberal majority, and he will assign the opinion to himself or another justice. It may even, at the margin, influence how he votes."

Jeffrey Toobin thinks that Kagan will be the pick.

Law had this to say:

Goldstein's influential Feb. 23 SCOTUSblog has framed discussion of the current state of play on Stevens' potential successor. Its lengthy title, also aimed at knocking down rumors of a Ginsburg retirement, was, "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice, And Justice Ginsburg will look across the bench at her new colleague and smile."

In the current setting, it can't hurt, for example, that famed Harvard Law School professor Laurence Tribe, a fan of Kagan's, is ensconced in the Justice Department as an adviser to Attorney General Eric Holder Jr. For Garland, it also can't hurt that two of his former clerks, Danielle Gray and Jonathan Kravis, are attorneys in the White House counsel's office. Gray plays a key role in screening judicial nominees.

Diane Wood has connections to Obama's Chicago allies, and, to a lesser degree, Obama himself, having taught with him at the University of Chicago Law School.


Still, there seems to be less chatter about the identity of the Stevens replacement than usual in gossipy Washington. "I'm not hearing a damn thing," said Nan Aron, who usually does. "It feels like Ginsburg followed by Breyer all over again." Aron is president of the liberal Alliance for Justice.

Some conservatives speculate that liberals will be unenthusiastic about the presumed front-runner, Elena Kagan. M. Edward Whelan III, a former Scalia clerk who heads the Ethics and Public Policy Center, said Kagan's fence-mending leadership of Harvard Law School has garnered for her "significant support among conservatives," and she has been "very guarded" in the stances she has taken throughout her career.

But Aron, asked if she would oppose Kagan, said no, adding, "This year we are going to decide who we are for, not who we are against."

Aron, a leading strategist in confirmation battles since Bork, did say that, "knowing this is the Stevens seat, we hope President Obama would appoint a very strong defender of individual rights, a strategic leader. This is much more important than Souter's seat." Aron also argued that "no matter who he puts up, Republicans will obstruct. So he should just appoint someone he really wants to be a fitting successor to Justice Stevens.

Some more insight from Law :

For his part, Stevens, who will turn 90 in April, has done nothing to discourage predictions that he will leave this term. He confirmed last year that he had hired only one clerk for next term -- the number that retired justices are allowed.

Stevens' halting reading of his powerful dissent in Citizens United v. FEC on Jan. 21 was for many the first sign that the long-serving justice may be faltering. "Most people's 'bad days' don't include the inability to correctly pronounce a significant number of basic words," Garrow said. "The Supreme Court press corps largely gave him a pass on that."

So why does the notion of two possible vacancies at once seem to be sticking? Partly because of the bitter divide in the Senate. Even with a 60- or 59-vote Democratic majority, Obama has had a hard time moving his agenda, and the fall elections may leave him with an even smaller margin. As a result, the thinking goes, Ginsburg might leave sooner than planned to guarantee that Obama can replace her without the kind of rancor or divisive filibuster he might face next year.

University of North Carolina School of Law professor Michael Gerhardt, an expert on the nomination process, thinks that's not a major concern. "It would be very hard, if not practically impossible, for Republicans to filibuster a Supreme Court nominee," he said. "Supreme Court nominations tend to be different."

But the poisonous climate in the Senate today may have changed that, Wermiel said. "We all believed you wouldn't dare filibuster a Supreme Court nominee because everyone recognized that the Supreme Court needs to do its work," he said. "That assumption may be less true than it once was."

Originally posted to math4barack on Sat Apr 03, 2010 at 05:48 PM PDT.


Who do you hope President Obama nominates to replace Stevens?

23%84 votes
42%153 votes
17%65 votes
3%14 votes
13%48 votes

| 364 votes | Vote | Results

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